This is getting interesting. The Democrats, realizing they may not be able to stop the GOP from filling Ginsburg's seat have trotted out the threat to pack the court by adding seats, presumably at least four. A few quick thoughts...
Saturday, September 19, 2020
Court Packing: A few quick thoughts
* Mitch McConnell is the smoothest political operator to head the Senate since Lyndon Johnson in the 1950s. If he is moving to fill the vacancy he has probably judged the risk of court packing in retaliation to be low.
* For the Democrats to pack the court they need Biden to win the general election and probably more than the razor thin majority they are looking at in a best case scenario in the Senate.
* By my count there are around six GOP senators who are in tight races this year. The GOP currently has a majority of three. If the Democrats run the board they would essentially flip that and hold a majority of three. Except that the Democrats are all but certain to loose a seat in Alabama. So that means their best case is now a majority of two.
* Expanding the SCOTUS is a matter of law, so it is in theory subject to the filibuster. But that has been on life support ever since Harry Reid ended it to allow Obama to appoint lower court judges that the Republicans were blocking. Mitch further rolled back the filibuster to get Trump's two SCOTUS nominees through. So there is no reason to believe the Democrats won't end what's left of it. But...
* They would not be able to change the SCOTUS if they lost three votes. (A 50/50 tie would likely be broken by a Vice President Harris in their favor.) The Democrats are not as ideologically homogeneous as the GOP. Which is to say they have a few fairly centrist senators. It is not at all certain every Democrat would vote for such a radical act that would inevitably be countered the next time the GOP regained the levers of power in DC.
* The Democrats may be playing into Trump's hands. They are dangerously close to making the election a referendum on whether or not to pack the Supreme Court instead of a vote of no confidence in Donald Trump. That is not likely to be a winner for them. I can see Trump's campaign slogan now; "A vote for a Democrat is a vote to pack the Supreme Court."
The bottom line is that if the GOP wants to fill the seat before the end of the year, they might be able to do it and the risks of retaliation may be lower than some want to believe. The main obstacle is that the GOP, with a majority of three, cannot afford to lose four votes. And they have probably already lost one vote from Alaska.
The GOP is all but certain to lose seats in Arizona and Maine where the incumbents are behind by margins that do not appear to be surmountable. McSally in AZ, who appears to be electoral toast, is a strong Trump supporter and with nothing to lose is unlikely to vote against a nominee. Susan Collins of ME is also on her way out, but she is the last New England moderate Republican in the Senate. Her vote is dicey at best. The other Senate races are tight enough that my guess is no sitting GOP Senator hoping to be re-elected will risk ticking off Trump's base. One further complication is a quirk of law in Arizona. Barring a miracle the Democrats will win that seat, and under state law the new Senator elect can take office as early as November 30. If the new justice has not already been confirmed that will cut the GOP's margin down by a vote.
So yeah, this is going to be damned close.
But if someone put a gun to my head and said "place your bet," I'd put my money on the turtle. Where most folks go to bed at night counting sheep, Mitch McConnell nods off counting votes and reciting long memorized arcane parliamentary rules of procedure. If something is doable in the Senate, and Mitch wants it done, I would take a very very deep breath before betting against him.